Citation Nr: 1509823
Decision Date: 03/10/15 Archive Date: 03/17/15
DOCKET NO. 10-45 553 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to a rating greater than 30 percent for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Rutkin, Counsel
INTRODUCTION
The Veteran served on active duty from July 1959 to January 1960, and from October 1961 to August 1962.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Because the Veteran submitted new and material evidence of worsening hearing within one year of this decision, it is properly on appeal rather than a November 2009 rating decision, as implicitly found by the RO when it later granted a 30-percent rating in a January 2013 decision back to the December 2008 date of claim. See 38 C.F.R. § 3.156(b) (2014); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (new and material evidence received within one year of an RO decision prevents that decision from becoming final).
The Veteran did not appear for a hearing before the Board scheduled to be held on January 26, 2015. The claims file includes a December 2014 letter to the Veteran's correct address notifying him of the date, time, and location of the hearing. Thus, the Board presumes that he received timely notification of the hearing. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014). As the Veteran has not provided a reason for his failure to appear or requested that the hearing be rescheduled, the Board finds that the hearing request has been withdrawn. See 38 C.F.R. § 20.704(d) (2014) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn).
In a February 2009 written statement, the Veteran also raised a service connection claim for ear infections. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
In a December 2009 statement (on VA Form 21-4142), the Veteran indicated that he received treatment for ear problems at the VA Medical Centers (VAMC's) in West Palm Beach, Florida and Orlando Florida (at the Viera outpatient clinic) and also at the Miami VA Healthcare System (HCS) from 2006 to 2008 for an ear "injury," including surgery, and ear infections. The January 2013 supplemental statement of the case also lists in the section of evidence considered VA treatment records from the West Palm Beach VAMC dating from November 2001 to September 2012, from the Miami VA Healthcare System dating from July 2004 to September 2008, and from the Orlando and Tampa VA Healthcare Systems from July 2007 to November 2012. No VA treatment records dated prior to 2009 are in the claims file. Accordingly, on remand, these records must be added to the file. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).
The Veteran should also be scheduled for a VA audiological examination to assess the current level of severity of his bilateral hearing loss. 38 C.F.R. § 3.327(a) (2014); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007).
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Add the following VA treatment records to the claims file, to the extent they exist:
* West Palm Beach VAMC, November 2001 to September 2012.
* Miami HCS, July 2004 to September 2008.
* Orlando VAMC, July 2007 to November 2012.
* Tampa HCS, July 2007 to November 2012.
* All VA treatment records since June 2012.
2. Schedule the Veteran for a VA audiological examination to assess the current level of severity of his hearing loss.
3. After completing the above actions and any other development that may be indicated, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).